Opinion

Paging Dr. Colombo: When Physicians Become Instruments of the Law

What do you do when the law and your Hippocratic Oath come into conflict?

James Glazer, MD

Fam Pract Manag. 2008 Jul-Aug;15(7):12-13.

Each afternoon before the clinic session begins, residents and faculty at our training program gather to mull over a compelling case. Typically, we discuss medical conundrums, difficult diagnoses and the like. Last week, a question of a far different sort came up.

A resident told us about a patient of his, Mike (name changed to help protect identity), who mentioned his relationship with his girlfriend at the end of a physical exam. Mike is an intelligent, 17-year-old young man, getting ready to finish high school and hoping to go on to trade school afterward. He had been dating a girl for almost six months, and they were beginning to have problems. “We're having trouble sometimes, mostly because we fight a lot,” he said. Mike described arguing with his girlfriend about plans, his work obligations and issues around money. Finally he said, “I guess the problem really is all about my feeling that she is really immature.”

“Well, how old is she?” the resident asked.

“She's 13,” Mike replied.

Mike and the resident went on to discuss the fact that Mike would soon be turning 18 and the legal issues his relationship might pose at that point. Mike understood that our state has a statutory rape law. He knew that he might be in violation of it if they were still dating by his 18th birthday. He told his physician that his girlfriend's parents knew about the relationship and approved of the couple. Mike didn't believe the legal implications alone constituted a reason for breaking up with her.

The issue of the resident's obligation to report the relationship was central to our discussion in our noon conference that day. “If I am aware a crime is being committed, aren't I ethically bound to report it?” the resident asked us. We probed more deeply: Was Mike's girlfriend consenting to the relationship? (Yes.) Was there any physical, emotional or sexual abuse going on, outside of the issue regarding the age difference? (No, as far as the resident could tell.) Did either set of parents think the relationship was dangerous? (No, according to Mike.)

As we generally do when medical questions come up, we looked to the literature. One of the faculty preceptors reviewed our state's criminal code and discovered the letter of the law pertaining to statutory rape. We squinted over the computer screen and tried to imagine we were lawyers trained in interpreting the law. It seemed that the law would describe the situation as statutory rape as soon as Mike turned 18. One preceptor felt the resident had an obligation to report Mike to the authorities. “You are licensed through the state, and you have a legal obligation to uphold the laws of the state. If you think a law is broken, then it is your duty to report it,” he told us.

I worried about other, nonlegal implications of that approach. I remembered one of my own teachers framing a similar issue in far different terms. “I try to let nothing get in the way of my sense of obligation to my patient. Advocating for the health of my patients is my primary job, and it is the most important ethical consideration,” this teacher had told me years before. So I posed a different question to the group: “What about your patients who admit to recreational marijuana use in their physical exams? Do you feel compelled to report their crimes? Would the patient's need for medical care be furthered by that sort of standard?”

Points of conflict

Our discussion ran out of time, but I have been thinking about the questions we brought up that day. This is not the only place where physicians are called upon to be instruments of the law. West Virginia recently passed a controversial plan in which residents who are eligible for Medicaid will be asked to sign a contract outlining “member responsibilities and rights.” Once they sign, if they fail to live up to the terms of their contract, their services will be curtailed. Under this plan, physicians are obligated to report patients' noncompliance with aspects of their contracts such as reliability in keeping appointments or taking medications. According to the state, it is the physicians' responsibility to give the government information that could lead to their patients losing coverage. In a recent article discussing this new law, the authors point out that under such a system it is easy to foresee children losing their benefits because of the transgressions of their parents, and patients with mental illnesses will likely have even greater difficulty accessing care.1 Physicians are made responsible for taking away those opportunities for care.

Medical school is not so far behind me that I have forgotten the courses I took. I studied pharmacology and anatomy, neurosciences and biochemistry. One thing I did not study was law. I never took a course in determining whether patients should keep their electrical service despite not having paid their bills, although patients frequently ask me to intercede with the power company. I never had a course in how to assess whether a patient qualifies for a handicapped license plate, though just last week a patient asked me to verify that her aching knees qualified her for special parking privileges. And I never learned whether it is just for my government to challenge my Hippocratic Oath by asking me to inform on my patients.

The centuries-old oath I took when I graduated from medical school, and the promise I make to each patient who joins my panel, is to do my best to take care of them. When society asks me to become an agent of the law, it threatens that trust between my patient and me. How can the physicians of West Virginia be advocates for their patients while simultaneously collecting information that might lead to their being denied higher levels of coverage? How can our resident continue to have a trusting relationship with Mike when he feels a responsibility to report him for a crime of statutory rape? And how can I be asked to juggle the needs of my patient with the electric company's desire to operate in the black?

The oath and the law

I believe that we must be constantly vigilant for these insidious threats to the sanctity of our relationships with our patients. We take on enough of a burden when we accept responsibility for serving our patients' medical needs; to add to our responsibilities the role of policeman would put at great risk our ability to serve our patients.

To be sure, there are instances in which natural law and common sense require that we intervene in legal realms. Nevertheless, I think it is time for us all to become a little more introspective about the various roles our government, the insurance companies and the media would like us to fill. We may not be the best people to determine disability status, to referee disputes with insurers or to interpret statutory rape laws. Clearly, we often don't feel comfortable with those responsibilities. We may also refuse these roles on the grounds that they pose too great a threat to our duty to serve the interests of our patients' health. The stand taken by the American Medical Association, the California Medical Association and the American Society of Anesthesiologists when they opposed California's ruling that a physician must personally supervise executions is an extreme example.2 Still, it is just one of the ways in which physicians are being placed in opposition to their patients, and we're being told that it is our responsibility to uphold the laws that put us there. But in these difficult situations, and as we examine our own consciences, we should each feel empowered to uphold our oath to care for our patients first. After all, history should teach us that what's legal may change, but what's ethical will stand the test of time.

FPM E-Newsletter

To avoid a negative payment adjustment from Medicare in 2020, practices must achieve a MIPS final score of at least 15 points for the 2018 performance period. Here's how to meet this performance threshold.